Bexar Towing finds a couple of friends in court

Updated 1:41 pm, Saturday, February 9, 2013

Photo: Kin Man Hui, San Antonio Express-News

Image 1of/2

Caption

Close

Image 1 of 2

Oscar Toledo was charged nearly $300 last year due to his vehicle being towed by Bexar Towing. Toledo was one of several people who have tried to obtain a refund from Bexar Towing because he believed he was overcharged. However, Toledo lost his case because a judge ruled that Bexar Towing should not be penalized because the City of San Antonio failed to comply with certain state lawing regarding towing.

Oscar Toledo was charged nearly $300 last year due to his vehicle being towed by Bexar Towing. Toledo was one of several people who have tried to obtain a refund from Bexar Towing because he believed he was

After Bexar Towing took his car last summer and charged him nearly $300 to get it back, Lance Fitzsimon thought his chances were good to get at least a partial refund.

He'd heard police had cited the company hundreds of times for collecting more than the city's $85 cap for such a nonconsent tow.

He'd also filed a complaint with the Texas Department of Licensing and Regulation, which oversees the towing industry and had notified him that his case was being investigated. The agency has granted refunds to some vehicle owners because of overcharging complaints.

But Wednesday, standing in the courtroom of recently appointed Justice of the Peace Jeff Wentworth, Fitzsimon got a surprise.

Wentworth, the former state senator who lost his bid for re-election last year, ruled in favor of Bexar Towing. Wentworth said the city ordinance that established the $85 limit was invalid because it violated a 2003 state law that spells out how towing companies can compel local governments to review, and potentially raise, the fees they can charge.

Specifically, the state law requires cities to establish procedures by which a towing company can request a tow fee study, and “shall establish or amend” the fees to represent fair market value for the service.

Most Popular

The city adopted the $85 towing fee limit in 2002, an amount that would not change for another decade. On Jan. 31, the City Council amended the ordinance and voted to raise the cap to $177, which goes into effect Sunday.

The ordinance established a way for towing companies to request tow fee studies, procedures that did not previously exist, bringing it into compliance with state law.

Wentworth's decision — one of three he made in favor of Bexar Towing that day — amounted to vindication for company founder John DeLoach, who has argued for years that the city's ordinance could not legally be enforced.

“It validates everything I have ever said all along,” said DeLoach, who asked the city to initiate a tow fee study and to raise the fees numerous times over the past 10 years.

The city finance department performed such a study in 2006 and recommended raising the limit to $113, but the City Council never voted on it.

Bexar County Court of Law Judge Jason Pulliam twice ruled the same way, once Friday and also last week, deciding the city ordinance was invalid because of the state law.

In both cases, the vehicle owners previously had won refunds in a different court, that of Justice of the Peace Edmundo M. Zaragoza. But Bexar Towing appealed the rulings to county court and came out victorious.

“My ruling was the state law applied because the city had failed to amend the fee schedule,” Pulliam said, adding he always tries to rule “strictly on the law.”

His decision came as a huge blow to Oscar Toledo and his wife, Nelda, whose pickup was towed by Bexar Towing last year from the Greyhound bus station. Toledo had parked illegally for about 15 minutes, his wife said, while he helped her with her bags.

Like Fitzsimon in Wentworth's court, the Toledos did not have an attorney. She said DeLoach's attorney handed them a lot of paperwork that she's still struggling to understand.

She said the couple were “very, very disappointed,” having borrowed money on their credit card to pay for the tow last year.

But what the city of San Antonio did, Wentworth said in a phone interview Friday, “was not legal.”

“The city of San Antonio didn't follow state law,” he said. “State law supersedes municipal ordinances.”

The city started aggressively going after the local towing industry for charging in excess of the $85 cap last spring, though it appears the companies had been charging higher than that for years. Bexar Towing had charged a $250 base fee since late 2010, based on the maximum fee allowed by the state, something DeLoach has argued he has the right to do.

That didn't stop the city from issuing hundreds of tickets against Bexar Towing President Alex Garcia and a number of citations to DeLoach. Those criminal cases went to Municipal Court. Garcia was found not guilty in at least one instance; DeLoach lost his case but plans to appeal to the county court.

The city said it still plans to pursue the remaining cases against him and Garcia.

City Attorney Michael Bernard said the rulings by Wentworth and Pulliam will have no affect on the ongoing Municipal Court litigation.

“We're confident we'll continue to prevail,” Bernard said.

TDLR bases its enforcement on the Texas Occupations Code, which says cities like San Antonio can set their own tow fees, public information officer Susan Stanford said.

She said the recent rulings won't change the course of any ongoing state investigations of complaints against Bexar Towing.

“We will go by our interpretation of the state statute,” she said.

But the debate over legal details meant little to the people like Fitzsimon or Toledo, who simply wanted to recover the money they believed they were owed.

Even if DeLoach had a valid argument against the city, Fitzsimon figured the existing city ordinance still should stand since it was in effect when his vehicle was towed.